Telework Legal Issues Easy to Overcome

While technology has made working from home cost-effective for both employees and employers, businesses should keep a close eye on potential legal pitfalls that may arise.

According to a survey compiled by the Telework Research Network, 20 to 30 million people currently work from home in the U.S. at least one day a week. It’s a practice that saves money and pays dividends for both parties.

Unfortunately, some companies shy away from telecommuting for fear of legal concerns and liability. Paul Lopez, a director with Tripp Scott PA, is a specialist in labor and employment law. He shared a few thoughts about potential pitfalls, and what employers don’t really have to worry about.

OSHA – Generally speaking, OSHA does not expect employers to make sure an employee’s work-at-home environment is safe. There is an exception, however, for hazards caused by materials or equipment the employer is providing.

“The truth of the matter is unless the company is providing the employee with hazardous chemicals, paint thinners, or some sort of equipment to manufacture a product from their home, OSHA pretty much leaves that alone,” Lopez explains.

Workers Comp – OSHA aside, workers compensation issues still apply. The hard part, of course, is verifying whether the employee was actually injured on the job or during their own personal pursuits.

There’s no simple answer, Lopez explains, other than assessing and investigating, just like any other claim.

“When you’re talking about workers compensation, I think it’s always advisable for employers to have some general guidelines and policies on doing the work from home,” Lopez says. “For example, most of the policies I draft for my clients indicate that if you are injured on the job, you need to contact your supervisor immediately.”

“Whether the employee is working from home or the office, those types of policies should still apply,” he says.

Time – Compensation and overtime rules apply for any hourly employees. “That’s a big topic of discussion—policing when these employees are working and not working,” Lopez says.

He points out that certain technology such as cell phones, network log-ins, and even GPS units can provide back-up records, of sorts, of the time employees spend on the job.

But whether or not those tools are available, Lopez recommends that employees fill out and sign a daily time sheet. He suggests employers even take the extra measure and require weekly, signed timesheets on top of that.

The key, though, is to periodically monitor and follow up. If employees aren’t producing a reasonable amount work in the reported time frame, that becomes a management issue. But the potential legal problem is creating a situation in which employees later claim they worked more hours than they were paid for.

In one scenario, the employee may consistently report an eight-hour work day. Later, however, the employee claims they actually worked more, but their manager wouldn’t allow them to report all their time.

Of course the first step to head off such claims is to communicate firmly to both managers and employees that all hours must be reported. But beyond that, Lopez says employers should require employees to keep accurate logs.

Let’s say the employee works Monday through Friday and consistently reports a schedule from 8 a.m. to 5 p.m. with an hour off for lunch at the exact same time.

“Common sense says that can’t be the case. What probably happens is the employee figures, ‘I’m working an eight-hour day; it doesn’t matter when,’” Lopez says.

But that sort of relaxed recording keeping can cause problems. “I’ve seen companies get burnt.

“When you see a time sheet with very round numbers all the time, it’s much easier for a jury or a judge to accept the employee’s argument that the company was pressuring them not to have overtime,” he says.

Under-paid. Another common time issue for work-at-home employees involves hourly workers who field customer calls after hours. Imagine an AC technician on call at night. Even though the employee’s shift has ended, if they’re actually fielding calls for the employer—that’s compensable.

“It goes back to time keeping and requiring employees to really jot down if they really speak to customers,” Lopez says.

Imagine what could happen otherwise. The employee might later claim he or she regularly took two or three calls a night, at an average of 15 minutes each, without pay. That extra three to seven extra hours each week that could really hit hard in an overtime claim.

Customer Injury

What happens if a customer (or any third-party) is injured at the employee’s home? Lopez wasn’t aware of any case in which this had occurred. But based on OSHA’s limits in regards to employer liability, he expected the standard course of action is that the employee’s homeowner’s insurance policy would come into claim.